Friday round-up

Posted Fri, September 22nd, 2017 7:28 am by Edith Roberts

Bloomberg BNA’s Cases and Controversies podcast features a discussion of Epic Systems v. Lewis, in which the court will decide whether employment agreements that ban collective resolution of workplace disputes violate federal employment laws, calling the case “a major showdown between businesses and their workers and the increasing use of arbitration agreements in employment contracts.” In USA Today, Richard Wolf reports that the government’s recent “about-face” in Epic Systems “has created an extremely rare scenario: the Justice Department and National Labor Relations Board, a federal agency, will oppose each other in court”; he concludes that “[b]y all indications now, the case … looks like a 5-4 victory for employers.”

At Take Care, Jim Oleske explores the contested meaning of “general applicability” in the Supreme Court’s free exercise jurisprudence as it relates to the religion-clause issues in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment allows a state to require a Christian baker to create a cake for a same-sex wedding. At The World and Everything In It (podcast), Mary Reichard hears from eight lawyers who filed amicus briefs asking the justices to hear a similar appeal from a florist alongside the baker’s case.

Previews of the upcoming term abound. At Bloomberg BNA, Kimberly Robinson provides “the most vital statistics for SCOTUS watchers who want an inside-baseball look at the court’s upcoming cases.” Also at Bloomberg BNA, Jordan Rubin surveys the criminal cases on the docket for October Term 2017, including cases involving “the balance between surveillance and privacy in the mobile phone era, the treatment of immigrants who break the nation’s laws, and whether death row inmates can challenge legal errors they claim are grave enough to save them.” Boom! Lawyered, a podcast from Rewire, looks ahead to “the opening of the U.S. Supreme Court term and the big decisions on the horizon.” The Heritage Foundation’s SCOTUS 101 podcast offers a look at “amicus briefs and the start of the Supreme Court’s next term,” as well as an interview “with the New York Times reporter Adam Liptak about covering the Supreme Court.”

Briefly:

For the Associated Press, Jessica Gresko reports that “Supreme Court Justice Ruth Bader Ginsburg was a surprise guest speaker Wednesday evening during services for the Jewish new year in Washington, telling worshippers she believes being Jewish helped her empathize with other minority groups.”

In The Washington Times, Alex Swoyer reports that “Justice Sonia Sotomayor said Thursday she doesn’t support having cameras inside the Supreme Court, saying she fears they would distort the justices’ behavior and hurt the court’s role in government.”

At Greenwire, Amanda Reilly reports that “[e]nvironmental groups and a New York-led coalition of states have asked the Supreme Court to overturn a decision that reinstated U.S. EPA’s contentious ‘water transfers’ rule.”

At Lawfare, Steve Vladeck looks at Dalmazzi v. United States and two related cert petitions the justices will consider at Monday’s “long conference,” the first after their summer recess, that “present what is unquestionably the most important civil-military relations question that [the court has] confronted in decades.”

In an op-ed in Forbes, Richard Samp weighs in on Jennings v. Rodriguez, a challenge to the prolonged detention of immigrants without bond hearings that will be reargued in October, pointing out that “in a very significant sense, criminal aliens detained under § 1226(c) hold the keys to unlock their own jail cells,” because a “criminal alien can regain his liberty instantly by agreeing to return to his native country.”

In an op-ed for Time, Shane Claiborne urges the Supreme Court to halt the execution of Keith Tharpe, a Georgia death-row inmate whose execution is scheduled for Sept. 26, arguing that the justices “should protect a man with intellectual disability from being sentenced to death by a jury containing a man whose agenda was racism, not justice.”

For Education Week, Mark Walsh discusses “a new book of essays that examines [the late Justice Antonin] Scalia and education,” whose authors suggest that although “Scalia’s views and legal opinions on education are not his best-known legacy, … they provide a window into his broader judicial philosophy.”

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Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.